concurring.
Today we witness another startling valid legal reason why this Court should have aborted, rather than to have given birth to, the monster child now known in our legal circles as “Almanza the Terrible.” Also see Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985), in which a majority of this Court erroneously delivered the monster child, “Almanza the Terrible,” into our legal community.
In this instance, without any real legal basis therefor, a majority of this Court holds that although the trial court’s final charge to the jury on punishment was erroneous, because it did not instruct the jury on the range of punishment if they found enhancement allegations of the indictment to be untrue, that this error was not so egregious that it deprived appellant of a fair and impartial trial; thus, the majority says that such error was harmless beyond a reasonable doubt to the rights of the appellant.
I disagree, but because of what a majority of this Court stated and held in Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985), which opinion most certainly did not and does not espouse any principles of fairness to the accused, or to justice in general, as the majority opinion in this cause erroneously asserts, but which opinion to the contrary espouses principles of unfairness when it comes to gauging whether a trial court’s final charge to the jury is fundamentally erroneous, I am compelled to agree with the majority opinion that, by applying what was stated and held in Almanza v. State, supra, whatever error might have existed in the court’s final charge on the issue of punishment in this cause, was harmless to the appellant, as it did not, under Almanza v. State, supra, deprive him of a fair and impartial trial.
I mentioned the following in the dissenting opinion that I filed in Almanza v. *157State, supra: “After today, harmless error should prevent even the most egregiously worded jury charge from constituting reversible error.” If this majority opinion does not make me a prophet, then the majority opinion that was filed in Bonfanti v. State, 686 S.W.2d 149 (Tex.Cr.App.1985), delivered this date, most certainly does.
In Almanza v. State, supra, a majority of this Court held that “if no proper objection was made at trial and the accused must claim that the error was ‘fundamental,’ he will obtain a reversal only if the error is so egregious and created such harm that he ‘has not had a fair and impartial trial’ — in short ‘egregious harm.’ In both situations (objected to and unobjected to error), the actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.”
In this instance, but by applying the above test from Almanza v. State, supra, the majority finds that the error in the punishment charge, which occurred because the trial judge failed to instruct the jury on the range of punishment if they found the enhancement allegations to be untrue, did not deprive appellant of a fair and impartial trial. The jury’s verdict reads as follows: “We, the jury, having found the defendant guilty [of the second degree felony offense of robbery], assess his punishment at confinement in the Texas Department of Corrections for 27 years,” which range of punishment, of course, fell within the range of punishment specified for a first degree felony offense or a second degree felony offense enhanced by a prior felony conviction, and not a second degree unenhanced felony. See Y.T.C.A., Penal Code, Section 12.33. The jury, however, found appellant guilty of the offense of robbery, a second degree felony. Notwithstanding this finding, but in light of what this Court’s majority stated and held in Almanza v. State, supra, the majority makes it obvious to almost anyone that the error was harmless beyond a reasonable doubt to appellant. I disagree.
In this instance, the jury assessed appellant’s punishment at twenty-seven (27) years’ confinement in the penitentiary, which means that had the jury found either of the enhancement allegations not true, the maximum possible confinement in the penitentiary would have been only twenty (20) years. The majority appears to reason that even if the jury was not so instructed, and even if the jury verdict form does not so reflect, such error was obviously harmless to the appellant. How can this logically be so?
Perhaps, however, after today, but in light of Almanza v. State, supra, and today’s decision, some of our trial judges will exhibit and display their resourcefulness and cleverness by conceptionalizing and executing the court’s final charge on punishment on nothing larger than the back of a pinhead, in order that a majority of this Court can easily declare in print to the world that because the jury was not given enough information regarding what punishment to assess, but because they did assess a “reasonable” punishment, any error in the charge on punishment must have been harmless to the defendant-beyond a reasonable doubt-beeause it would be patently obvious to anyone that the jury was not confused in assessing the “reasonable” punishment that it did.